The Geneva Protocol

by David Hunter Miller

Article 6.

63. Article 6. When the system of compulsory arbitration, contained in article 4, had been established, the British representative pointed out that under paragraphs 9 and 10 of article 15 of the Covenant a dispute might still be referred to the Assembly. Article 6 was therefore drafted to ensure that the provisions referring to the actions and powers of the Council should apply to the Assembly under the new system. After considerable discussion it was decided to reserve questions of procedure to the Council as being a more suitable body.

Article 10.

64. Article 10, which contains the definition of an aggressor, provided one of the most difficult tasks of the First Committee. By the 23rd September a number of drafts had been considered but no satisfactory text had been found. The original idea was that it should be the duty of the Council to determine the aggressor, but the question then arose as to whether, in making this decision, the Council should act unanimously or by majority vote. Adherence to the unanimity rule would have made it possible for one State to prevent a decision being reached. Procedure by a majority vote might have resulted in a State being obliged to apply sanctions against its own judgment. The only way out of this difficulty was to avoid a decision by the Council at all, and to make the test of aggression automatic, when once certain conditions had been found to obtain. This is achieved by establishing a presumption which is to hold good until the Council has made a unanimous decision to the contrary. If the presumption stands it is considered sufficient to justify the application of sanctions. Even then it was thought that there would have to be something in the nature of a "declaration of aggression" in order to initiate the enforcement of sanctions, and that this declaration would have to be made by unanimity. Objections were raised to this, but these objections were finally satisfied by the insertion of paragraph 3, according to which the Council, if it cannot at once determine the aggressor is bound, as a matter of course, to enjoin an armistice upon the belligerents.

65. The Japanese Delegation were opposed to any presumption of aggression arising against a state which was involved in a dispute covered by paragraph 8 of article 15 of the Covenant, and found as the result that, though it had submitted the dispute to the Council, the Council were unable to make any recommendations on the subject. To meet this view, the amendment previously referred to was made to article 5, and the words "nevertheless in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly in accordance with article 11 of the Covenant" were added to paragraph 2 (1) of article 10. In the opinion of the British Delegation, this amendment does not affect paragraph 3 of article 10. If a resort to war occurs, and the Council cannot determine the aggressor, it is still bound to impose an armistice upon the belligerents.

66. To the final paragraph of article 10 the words "and any signatory State thus called upon shall thereupon be entitled to exercise the rights of a belligerent" were added at the suggestion of the British representative. This addition was made to safeguard the position of a State which, though no party to the dispute, joined in coercive measures to uphold the Covenant of the League and in so doing took forcible measures against the persons or the property of nationals of another State.

Article 16.

67. The relations between States signatory to the Protocol and States non-signatory and non-members of the League presented a problem the solution of which required great care. The various aspects of the question were thoroughly examined, and it was finally agreed that it would be sufficient to bring the principle contained in article 17 of the Covenant into harmony with the provisions of the Protocol. Sanctions can only be imposed on a State which is not a Member of the League if it refuses to accept the conditions and obligations of the Protocol when invited to do so, and resorts to war against a signatory State.

68. The question was raised of the relationship between States Members of the League signatory to the Protocol and non-signatory States Members. After careful examination, it was generally agreed that no special arrangement was necessary. The Members of the League are bound inter se by the Covenant and non-signatory Members are entitled, if they wish, to prefer the procedure laid down in the Covenant to the new procedure of the Protocol.

Article 18.